Byrne v. Rutledge

Decision Date08 October 2010
Docket NumberDocket No. 07-4375-cv.
Citation623 F.3d 46
PartiesShawn W. BYRNE, Plaintiff-Appellant, v. Bonnie RUTLEDGE, in her official capacity as Vermont Commissioner of Motor Vehicles, and David Dill, in his official capacity as Vermont Secretary of Transportation, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit



Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, Ariz. (Benjamin W. Bull, David A. Cortman, Jeffrey A. Shafer, Kevin Theriot, Alliance Defense Fund; Anthony R. Duprey, Neuse, Smith & Venman, on the brief), for Plaintiff-Appellant.

Eve Jacobs-Carnahan, Assistant Attorney General (Bridget Asay, Assistant Attorney General, on the brief), on behalf of William H. Sorrell, State of Vermont, Attorney General, Montpelier, Vt., for Defendants-Appellees.

Before: KEARSE, RAGGI, and LIVINGSTON, Circuit Judges.


Vermont, like many states, allows the owners of motor vehicles to request a “special number” license plate-more commonly known as a “vanity” plate-that contains a short message selected by the registrant rather than the generic combinations of letters and digits that the state Department of Motor Vehicles (“DMV”) would otherwise assign. While Vermont allows residents to select combinations that convey messages on a variety of topics, including statements of personal philosophy and taste, inspirational messages, and statements of affiliation with or affirmation of entities, causes, and people, the state does not permit any “combination[ ] of letters or numbers that refer, in any language, to a ... religion” or “deity.” Vt. Stat. Ann. tit. 23, § 304(d)(4).

In April 2004, plaintiff-appellant Shawn Byrne applied for plate “JN36TN,” which he intended as a reference to the often-quoted Biblical verse, John 3:16. The state denied his application on the ground that the requested plate referred to religion in violation of state law. Byrne then commenced this suit in the United States District Court for the District of Vermont, contending that the state's denial violated his First and Fourteenth Amendment rights. By order dated September 28, 2007, the district court (Murtha, J.) adopted the reasoning of Magistrate Judge Jerome J. Niedermeier and granted summary judgment in favor of defendants-appellees. Relying principally on this Court's decision in Perry v. McDonald, 280 F.3d 159 (2d Cir.2001), the district court found that the state law constituted a permissible viewpoint-neutral and reasonable regulation on speech in a “nonpublic forum.”

Because we conclude that Vermont's ban on all vanity plate combinations that “refer, in any language, to a ... religion” or “deity” constitutes unconstitutional viewpoint discrimination and, moreover, is unreasonable as applied to Byrne's application, we reverse.


Vermont requires residents to register operative motor vehicles with the state Department of Motor Vehicles (“DMV”) and directs the DMV Commissioner to assign to each registered vehicle “a distinctive number” along with “a number plate or plates showing the assigned number.” Vt. Stat. Ann. tit. 23, § 304(a). For an additional fee, Vermont allows registrants to select that “assigned number” themselves by requesting a “special number” or vanity license plate. Vermont law provides that registrants requesting such a plate may select virtually any combination of up to seven letters or numbers provided that the selected combination has not previously been assigned to another vehicle and that it complies with certain other technical requirements. Id. § 304(d).

Pursuant to this law, the state DMV has issued tens of thousands of vanity plates to state motorists-as of 2006, Vermont had more than 38,000 active vanity plates, and was processing about 100 applications per week-each containing a personal message selected by the motorist. Popular subjects on which motorists have chosen to express themselves include personal interests or professional pursuits-e.g., BUTCHER, BKEEPER, LUV2FSH, GOYANKS; personal philosophies and beliefs-e.g., HARMONY, LOVE, EARTH1, AMFREE; meaningful exhortations or inspirational messages-e.g., PEACE2U, LOVLIFE, THNKPOS, CARP DM, BEJOYFL, DARE2BU, REJOICE; and statements of love, respect, and gratitude for important individuals in the motorist's life-e.g., THXDAD, ILUVLYN, MI3SONS, MISUDAD.

While state motorists thus can and do use vanity plates to comment on a wide variety of topics, state law prohibits the Commissioner from issuing special plates if the proposed combination of letters and numbers falls into one of seven categories. 1 Of these various prohibitions, which include bans on combinations that are “vulgar, derogatory, profane ... or obscene” or those that “connote ... any illicit drug,” Vt. Stat. Ann. tit. 23, § 304(d)(1), (3)(A), only one is challenged in this action. At issue here is the state ban on any combination that “refer[s], in any language, to a ... religion” or “deity.” Id. § 304(d)(4). The asserted purpose of the ban is to avoid the “distraction and disruption [that would] result[ ] from controversial speech” and to “disassociat[e] the State from speech” it does not endorse. Respondents' Br. at 31, 33.

Defendants have interpreted the statute as requiring a ban on any combination with religious “meaning” and contend that they are thus authorized to ban not only those plates that overtly and obviously reference religion-i.e., those the state refers to as “objectively religious”-but also those plates that are meant by the registrant to embody a religious meaning no matter how cryptic the combination of letters and numbers might seem to a casual observer. The state refers to vanity license plates of the latter sort as “subjectively religious.” Respondents' Br. at 6-7. To effectuate this broad ban, the Vermont DMV requires motorists seeking vanity plates to complete sworn applications in which they state what a proposed combination “represent[s] to them. Applications for vanity plates are then reviewed by various DMV clerks who determine whether the proposed combination refers to a religion or deity (or violates any of the other statutory exclusions). According to the state, clerks rely on their own personal knowledge, the registrant's supplied meaning, and, at times, the advice of the department's general counsel. All plates approved by DMV clerks are then forwarded to the Department's Director of Operations and General Counsel for final review and approval before the plates are issued. Applicants whose combinations are rejected have the right to appeal those denials through the state Agency of Transportation.

While the stated goal of this administrative process is to effectuate the statutory ban on any “refer[ence] to religions or deities, the record indicates that, in practice, the process-and specifically, Vermont's policy of looking to “supplied meaning”-has led to somewhat confounding results. Respondents' Br. at 36. Pursuant to this process, Vermont has denied, as “objectively religious,” applications for the combinations SEEKGOD, 1G0D, THE REV, and KRISHNA, but it has repeatedly permitted combinations that might appear to a third party to “refer” to a religion or deity on the ground that the motorist supplied a secular meaning for the combination. 2 For example, the state has issued plates bearing the combinations GEMINI and LIBRA because they were explained as references to a motorist's “astrological” or “zodiac” sign; GENESIS and CREED as references to a motorist's favorite musical group; STJOHN as a reference to the U.S. Virgin Island; PSALM as a reference to “a song”; SINNER as a reference to “my life”; and ANGEL1, ANGEL21, ANGEL23, and ANGELSC as references to a motorist's “nickname” or a child's name. Similarly, the state has permitted the combinations BUDDHA (explained as a reference to a “nickname”); GODDESS (a “nickname [and] screen-name”); BLESSED (“because I'm blessed”); and KALI (“Our horse[']s name”), 3 even though a third party with no prior knowledge of the applicant's intended meaning might well interpret those plates as referring to religion and thus as the very sort of “controversial speech” the statute ostensibly seeks to prevent.

Vermont's practice of looking to a registrant's supplied meaning has also led the state to reject combinations that are “objectively meaningless” and that would be unlikely to strike casual observers as a reference to anything, let alone religion. For example, the state rejected the plate BVM22 because it was explained by the registrant as a reference to “Blessed Virgin Mary Perfection” and the plate JMJ1 because the registrant intended it as a reference to “Jesus, Mary, Joseph 1.” Vermont has struggled to explain how these denials are consistent with or in furtherance of the statute's averred purpose, arguing before this Court simply that such denials are necessary to avoid the unfairness that might result from allowing some motorists to make religious references simply because their chosen references are obscure. 4

Byrne applied for the plate that gives rise to this litigation on April 20, 2004, requesting the combination JN36TN and explaining that it “represent[ed] a “Bible passage.” 5 The parties agree that Byrne subjectively intended to refer to John 3:16, which states, “For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life.” John 3:16 (King James). Byrne contends, and the record supports the conclusion that, the combination JN36TN might have been permissible if his supplied meaning had been secular-for example, if he had put on his application that [m]y name is John, I am 36, [and] I was born in Tennessee.”

On May 14, 2004, the DMV rejected Byrne's application because it requested “a combination that refers to [a] deity.” Byrne appealed that denial to the state Agency of Transportation, which...

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